Bench Memos

Law & the Courts

How the Senate’s Confirmation Process Went Off Course

How did the Senate’s process for evaluating judicial nominations become so convoluted and confused?

This isn’t just about pointing fingers or placing blame for its own sake; there’s enough of that sport being played in Washington. Even in politics, however, the right prescription requires the right diagnosis. And it is possible to identify where the confirmation process went off course.

President George W. Bush took his first oath of office on January 20, 2001. Less than two weeks later, Senate Democratic Leader Tom Daschle (D., S.D.) pledged to use “whatever means necessary” to defeat Bush judicial nominees. In early May, Democrats attended a private retreat in Florida. According to the New York Times, “a principal topic was forging a unified party strategy to combat the White House on judicial nominees. . . . ‘They said it was important to change the ground rules.’” Democrats immediately set about doing that.

One of those ground rules involved Senate Rule 31. That rule requires that pending nominations be returned to the president in two situations, forcing him to re-nominate those individuals so that they are put back into the confirmation pipeline. The first situation is when the Senate adjourns or takes a recess for more than 30 days. For many years, when the Senate adjourned for the month of August, all senators would agree to waive Rule 31 to preserve the confirmation status quo until they returned.

But remember, Democrats had committed to changing the ground rules. In the previous 20 years, the Senate had confirmed nearly 900 judicial nominations but returned just eleven to the president at the August recess. On August 3, 2001, barely two months after seizing Senate control with the party-switch of Senator Jim Jeffords of Vermont, Democrats objected to waiving Rule 31 and sent 46 judicial nominations back to President Bush.

These included 16 men and women whose nominations the Senate had received only the day before. They included nominees to the local District of Columbia court. And they included 34 nominations — 74 percent of the total — that would later be confirmed without any opposition at all, a dozen of those without even a recorded vote.

Some might say that this tactic was no big deal, but it was more than that in several different ways. Democrats had seized their first opportunity to put action to their words about changing the confirmation ground rules. Second, by choosing this as their first target, Democrats made clear that even longstanding, consistent confirmation practices were on chopping block. And third, they signaled that their campaign would include delaying, as well as blocking, judicial nominations.

Rule 31 also requires that “nominations neither confirmed nor rejected during the session at which they are made” must be returned to the president. Here, too, senators routinely waived this rule to preserve the status quo. Operation Change-the-Confirmation-Ground-Rules, however, was still in effect. Democrats objected to waiving Rule 31 when the first session of the 115th Congress ended, sending 26 judicial nominations (and 175 executive-branch nominations) back to President Trump.

This change was only the beginning.

Thomas Jipping is the deputy director of the Edwin Meese III Center for Legal and Judicial Studies and a senior legal fellow at the Heritage Foundation.

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